Texas Criminal Procedure

Question 1

What is Habeas Corpus

Answer 1

“Show me the body.” It is a court order commanding someone who has someone in custody to produce that person and explain why they are in custody.

Question 2

When must a person be taken before the Magistrate?

Answer 2

Without unnecessary delay. Within 48 Hours.

Question 3

Under what conditions may bail be properly denied?

Answer 3

1. D is charged with a noncapital felony AND there is substantial evidence of D’s guilt AND he satisfies one of the following:
   a) two prior felony convictions
   b) present offense committed while on bail on a felony or
   c) One prior felony and the present offense uses a deadly weapon or
   d) the present offense was a violent or sexual offense that was committed while on felony parole or probation.

Question 4

What can a person do if their bail is denied?

Answer 4

Immediately appeal the order with the Criminal Court of Appeals

Question 5

What steps do you take to get bail reduced?

Answer 5

1. File application for Writ of Habeas Corpus in District Court
2. At hearing introduce evidence showing:
   a) bail set was excessive
   b) D cannot meet that bail
   c) an amount D can meet

Question 6

What do you do if the judge denies your bail reduction request?

Answer 6

File an appeal with the Court of Appeals

Question 7

What are the LASSO factors considered when deciding if bail is excessive?

Answer 7

1. Likelihood D will Appear
2. Ability of D to make bail
3. Seriousness of the crime
4. Safety of the victim & community
5. Bail is NOT an instrument of oppression

Question 8

What rights does Defendant have during an examining trial?

Answer 8

1. To be present
2. Be represented by Counsel
3. Have rules of evidence applied
4. cross-examine state witness
5. Subpeona and present defense witnesses

Question 9

When is D entitled to an examining trial?

Answer 9

He is charged with a felony and no indictment has been issued.

Question 10

When may a grand jury indictment NOT be waived?

Answer 10

Capital Murder charge

Question 11

What is an Information and how does it differ from an Indictment?

Answer 11

Information is a pleading filed by the State charging the person named with a criminal offense. Need only be signed by the prosecutor and must be supplemented with a complaint. An indictment is signed by the Jury Foreman and does not require a complaint.

Question 12

What is the charging instrument for a Class C Misdemeanor?

Answer 12

Sworn Complaint is the only thing needed.

Question 13

What admonitions must the trial judge give D before accepting a plea of Guilty or No Lo Contendere?

Answer 13

Inform D of:

1. Range of punishment
2. Recommendations to the State are not binding
3. Limited right to Appeal
4. May result in deportation
5. Inquire as to whether there is a Plea Bargain

Question 14

What is a Motion in Limine?

Answer 14

A pre-trial motion that asks for either (or both) a pretrial ruling on the merits of some question of evidence or procedure that will arise during trial or a pretrial ruling that opposing counsel must alert the judge before raising some matter of evidence or procedure before the jury.

Question 15

What is the difference between a Motion to Suppress and a Motion in Limine?

Answer 15

If you are granted a Motion to Suppress you need not object if opposing counsel introduces it anyway. If you are granted a Motion in Limine you must continue to object during pretrial and at trial in order to preserve the issue for Appeal.

Question 16

What questions does the Judge ask to determine if a person is eligible to sit on the jury?

Answer 16

1. Are you qualified to vote in this county and state?
2. Have you been convicted of theft or a felony?
3. Are you under indictment or accusation of theft or any felony?

Question 17

What are the challenges for cause that can be made to eliminate a potential juror during voir dire?

Answer 17

1. Prior theft or felony conviction
2. Indictment or accusation of theft or felony conviction
3. Insane
4. Not a qualified voter
5. Witness in the case
6. Served on a jury in a prior trial of the case
7. Served on indicting Grand Jury
8. Cannot read and write
9. Biased or prejudiced against defendant or law in the case (i.e. death penalty).

Question 18

If the opposing counsel uses all of their peremptory challenges on all of the African American jurors what do you do.

Answer 18

Make a Batson challenge and move to dismiss the array of prospective jurors. May only do after the list of jurors and its challenges have been submitted

Question 19

How Many Peremptory Challenges Does each side get in the follow courts:

a) Capital Murder/ Death Penalty
b) Felony Cases
c) Misdemeanors in County, Municipal, or Justice Court
d) Misdemeanors in District Court

Answer 19

a) 15
b) 10
c) 3
d) 5

Question 20

What is required to allow Business Records to be admitted?

Answer 20

1. Records were kept in the regular course of business
2. It was the regular course of business for a person with knowledge of the matter to make such records or transfer information for inclusion in the records.
3. Entries in the records were made at or near the time of the events; and
4. The witness is the custodian of the records.

Question 21

What are the two types of character witnesses and which questions may they be asked?

Answer 21

1. Reputation witness—may be asked “have you heard”

2. Opinion witness—may be asked “did you know”

Question 22

What OTHER reasons may character evidence be admitted? MIMIC?

Answer 22

1. Motive
2. Intent/Knowledge
3. Mistake
4. Identity
5. Common Scheme or Plan

Question 23

Does physician-patient privilege exist in criminal cases?

Answer 23

No. Unless D is in voluntary drug/alcohol treatment and the statement was made to someone involved in the treatment.

Question 24

When is the judge NOT required to direct a “presentence report”?

Answer 24

1. Punishment was assessed by a jury
2. The only available punishment is imprisonment
3. The judge is informed there is a plea bargain and is following the plea bargain
4. D is convicted of Capital Murder

Question 25

What is the difference between deferred adjudication and probation?

Answer 25

1. D must be found guilty before probation can be imposed. Deferred adjudication does not require such a finding.
2. D may plead not guilty and still receive probation, but for deferred adjudication, D must plead guilty or no lo contendere.
3. If deferred is revoked, D can get ANY sentence in the range associated with the original charge and if probation is revoked, D gets the previously assessed punishment.

Question 26

What is the timeline required for a Motion for a New Trial?

Answer 26

Must be filed within 30 days of sentencing. Presented to the court within 10 days of filing the motion. Court can permit presentation within 75 days of sentencing.

Question 27

What are the grounds for granting a new trial?

Answer 27

1. Continuing trial when D was required to be present and was not
2. Verdict was decided by Lot (flipping a coin)
3. D’s right to counsel was violated
4. A juror was bribed
5. Juror’s received evidence after retiring to make decision
6. A juror conversed with someone not on the jury
7. New evidence has been discovered

Question 28

What does it mean when Defendant is put on Deferred Adjudication?

Answer 28

The defendant is placed on community supervision without a conviction for the crime charged.

Question 29

When must D make a written request for a jury trial

Answer 29

Before commencement of the voir dire examination of the jury panel.

Question 30

Are oral confessions generally admissible?

Answer 30

No.

Question 31

When are statements made to the prosecutor during plea negotiations NOT admissible?

Answer 31

if they result in a plea of nolo contendere, but that plea is later withdrawn.

Question 32

How is hearsay treated in criminal and civil court?

Answer 32

The same.

Question 33

When may a party make a proper motion for an order directing the production of a witness’s prior statement?

Answer 33

At the end of the witness’s direct examination.

Question 34

When may a judge declare a mistrial due to a deadlocked jury?

Answer 34

If both sides agree.

Question 35

When must parties must notify the court of their intent to use expert witnesses?

Answer 35

At least 20 days before trial.

Question 36

The defendant wants to have the jury consider a recommendation that the sentence be probated. What must be included in the pretrial motion?

Answer 36

A statement that the defendant has not previously been convicted of a felony.

Question 37

What is a Complaint?

Answer 37

A complaint is a sworn statement that alleges that there is probable cause to believe someone committed a crime. A criminal complaint has several requirements:

1. Must be in writing
2. Name of the offense
3. Date of the crime
4. Specify the name or description of the accused

Question 38

What must be included on a Arrest Warrant

Answer 38

1. State the name of the person to be arrested, or a physical description.
2. State the name of the offense
3. Signature of the Magistrate
4. State the Judicial Office of the issuing Magistrate

Question 39

What is the difference between a bail bond and a personal bond?

Answer 39

Bail bond requires a surety.

Question 40

How are Grand Jurors selected?

Answer 40

1. By Grand Jury Commissioners appointed by the District Judge
2. The same manner in which trial jurors are selected for civil cases

Question 41

What must be included in a Motion for Discovery?

Answer 41

Must demonstrate good cause that the item requested is:

1. A tangible thing
2. Constitutes or contains material evidence
3. Is in the possession of the State
4. Is not the work product of the State

Question 42

To be considered valid, what three criteria must evidence based on scientific theory satisfy?

Answer 42

1. The underlying scientific theory is valid
2. The technique applying the theory is valid
3. The technique was properly applied.

Question 43

To preserve error based on a judge’s ruling to exclude evidence, what must the Prosecutor do?

Answer 43

Must make an offer of proof showing the substance of the evidence. May be done through question and answer form or through oral summary by the Prosecutor and must get a ruling from the judge to preserve the issue for Appeal.

Question 44

When must an attorney file notice that they intend to assert an insanity defense with the court?

Answer 44

No later than 20 days before trial.